BARBARO, et al. v. WROBLEWSKI, et al.

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Civil action commenced in
the Superior Court Department on August 17, 1993.

The case was heard by Constance
M. Sweeney, J., and motions for clarification and for an
additional hearing were heard by her.

Michael Pill for the
plaintiffs.

William C. Newman for
John T. Wroblewski.

Alan Seewald for Zoning
Board of Appeals of Amherst.

PORADA, J. The plaintiffs appeal from a
decision of the Superior Court affirming the issuance of a
special permit by the zoning board of appeals of the town of
Amherst (board) after a limited remand to the board for site plan
review. The plaintiffs argue that the judge impermissibly usurped
the discretionary power of the board by limiting the remand to
site plan review, improperly fragmented or bifurcated the special
permit process by allowing separate authorization of the site
plan, and erroneously denied the plaintiffs a hearing after the
board’s decision approving the site plan after remand. We affirm.

We summarize the relevant background. The
landowner submitted an application for a special permit to
develop sixteen townhouses on a parcel of land located in a
general residence district under the zoning by-law. The board
granted him a special permit to develop twelve townhouses,
subject to a number of conditions, one of which required
submission of a final site plan to the board for its
authorization. The board conducted two hearings on the site plan.
At the first hearing, an alternate member of the board
substituted for one of the regular members of the board who had
approved the grant of the special permit. At the second hearing,
all three regular members of the board were present and voted to
approve the site plan. The plaintiffs filed an appeal pursuant to
G. L. c. 40A, ‘ 17, in the Superior Court.

At trial, the plaintiffs argued primarily that
the special permit was invalid because the proposed project
exceeded the building and lot coverage requirements of the by-law
and because an alternate member of the board had substituted at
the site plan hearing for one of the regular members of the
board. The judge found that the proposed project exceeded the
maximum lot coverage allowed by the by-law by a mere one percent
because of the board’s failure to include decks and overhangs
from bay windows and roofs in their calculation of building
coverage but that this defect was easily remediable; further, the
substitution of an alternate member for a regular member of the
board during the site plan hearings did not constitute grounds to
invalidate the permit. Nevertheless, because of the deviation
from the by-law’s requirement of maximum lot coverage, the judge
revoked the special permit and remanded the matter to the board
to reconsider an amended application and revised site plan that
met the building and lot coverage requirements of the by-law as
defined by the judge’s decision. The judge specifically provided
that "[t]he [b]oard shall then review the application, as
amended, and vote thereon. The court retains jurisdiction of this
matter."

Subsequent to the issuance of this order of
remand, the landowner filed a motion for clarification of the
judge’s order in the Superior Court, inquiring whether the
board’s inquiry was limited solely to site plan review or a
reconsideration of the grant of the special permit. The judge
ruled that the remand was limited solely to a review of the
revised site plan and that, "[u]nless the [b]oard, upon
reconsideration, rejects the revised site plan, the [b]oard’s
granting of the special permit shall be affirmed." Upon
remand to the board, the landowner submitted a revised site plan
which removed the decks from the units. The board approved the
revised site plan. The plaintiffs then moved for a hearing before
the Superior Court on the ground that the revised site plan
failed to comply with the by-law relative to the number of
parking spaces, maneuverability of cars within the proposed
project, and the required width of entrance and exit driveways.
The plaintiffs also asserted that the judge’s remand order
improperly limited the remand to site plan review and foreclosed
reconsideration of the issuance of the special permit. The judge
denied the motion for a hearing and ordered judgment to issue
affirming the board’s issuance of a special permit.

We now address the plaintiffs’ arguments.

1. The order of remand. The plaintiffs
argue that the judge impermissibly limited the remand to the
consideration of the site plan on the ground that this
constituted an usurpation of the board’s discretionary powers. We
do not agree.

Here, the judge specifically found that the
board’s decision to grant a special permit was proper but that
the board had erred in determining the project’s lot coverage,
which exceeded the by-law requirements of maximum lot coverage by
one percent, a defect she found was easily remediable. Compare McCaffrey
v. Board of Appeals of Ipswich, 4 Mass. App. Ct. 109, 113
(1976) (in annulling the board’s decision affirming a building
inspector’s denial of a building permit, we remanded the case to
the board to consider the applicability of the parking
requirements of the by-law to the proposal and to allow the
applicant to make such modifications as might have appeared
necessary on reconsideration). The judge did not substitute her
judgment for that of the board. She simply allowed the board to
reconsider the landowner’s compliance with the lot coverage
requirements of the by-law, based on an interpretation of the
by-law not previously considered by it, and also allowed the
landowner to make such minor modifications in his proposal to
meet that requirement. In doing so, the judge sought to avoid
prolonging the controversy in the form of further applications,
hearings, decisions, and appeal. Accordingly, she remanded the
matter to the board simply to give the landowner an opportunity
to correct a de minimis violation of the by-law by submitting a
revised site plan to the board for its review. This is a
procedure that our appellate courts have recognized is
appropriate in certain circumstances. See Roberts-Haverhill
Assocs. v. City Council of Haverhill, 2 Mass. App. Ct.
715, 717-718 (1974). Here, where the violation of the by-law was
easily remediable without material or substantial changes in the
proposal and where the judge properly left the decision of site
plan authorization to the board as a prerequisite for the grant
of a special permit, contrast Chambers v. Building
Inspector of Peabody, 40 Mass. App. Ct. 762, 765-766 (1996),
we conclude the limited remand to the board was appropriate and
was not an usurpation of the board’s discretionary authority.

2. Bifurcation of the special permit process.
The plaintiffs argue that the special permit authorization
process was invalid because the same members of the board did not
hear or vote on the site plan authorization imposed as a
condition of the issuance of a special permit. The plaintiffs
point to the fact that an alternate member of the board
substituted for a regular member of the board at the first site
plan review hearing before the board’s authorization of the
special permit and that a regular member of the board who
approved the issuance of the special permit was no longer a
member of the board when the board gave final authorization of
the site plan after remand. We note that the plaintiffs’
objection that an alternate member substituted for a regular
member of the board at the first site plan review hearing has
been rendered moot by the court’s order of remand requiring the
board to reconsider site plan authorization. Likewise, a change
in the board’s membership would not in the circumstances of this
case render the special permit invalid. While we recognize that
ordinarily the same three members of the board who act in a
judicial or quasi judicial capacity and who are to join in the
decision must be present at each hearing, Mullin v. Planning
Bd. of Brewster, 17 Mass. App. Ct. 139, 141 (1983), there was
no violation of that legal principle in this case. Here the only
decision on remand required of the board was authorization of the
site plan, and the same three members of the board who
participated in the decision attended each of the hearings. This
is not a case where, after the issuance of the special permit,
the board left to a future determination its authorization of the
site plan or a case where the board delegated its authorization
to another board. Contrast Tebo v. Board of Appeals of
Shrewsbury, 22 Mass. App. Ct. 618, 623-625 (1986), S.C.,
400 Mass. 464 (1987).

3. Denial of a postremand court hearing.
The plaintiffs assert that the judge erred in refusing to grant
them a hearing on their objections to the final site plan
authorization after remand. While it might well have been better
practice to grant a hearing, we do not conclude that the judge’s
failure to do so amounted to error. The judge based her decision
on the fact that the plaintiffs’ request was simply a request for
reconsideration of her findings, but we do not agree that all of
their claims could be so characterized. While the plaintiffs’
claims of error based on the number of parking spaces, car
maneuverability, and the judge’s limited order of remand could
properly fall within the scope of the judge’s initial decision
that the proposed project comports with all the requirements of
the applicable law with regard to the issuance of a special
permit and of her ruling on the defendant’s order for
clarification, the plaintiffs’ challenge as to the number of
required parking spaces and width of the driveways does not
appear to have been previously addressed. Nevertheless, the judge
could rightfully have determined that no useful purpose would be
served by a further hearing because compliance with the
challenged provisions of the by-law were matters that could be
modified or waived by the board in its discretion and because the
board was careful to obtain both the fire chief’s authorization
and the town engineer’s authorization of the submitted site plan
before giving its authorization to the plan presented. In those
circumstances, we conclude that the judge acted properly in
allowing judgment to issue without further hearing.

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